The Volokh Conspiracy
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Could a Public Law School Stop Student Groups from Excluding Speakers Based on Their Support of Israel?
Several student groups at UC Berkeley Law School have signed on to a pledge not to invite any speakers—speaking on any subject—if those speakers "have expressed and continued to hold views … in support of Zionism, the apartheid state of Israel, and the occupation of Palestine." Berkeley Dean Erwin Chemerinsky, a noted liberal constitutional scholar, has condemned that position, but also argued,
I followed this up with a message to the entire Law School community: "The First Amendment does not allow us to exclude any viewpoints and I believe that it is crucial that universities be places where all ideas can be voiced and discussed. In addition, the Law School has an 'all-comers' policy, which means that every student group must allow any student to join and all student group organized events must be open to all students." …
[N]o group has violated the Law School's policy and excluded a speaker on account of being Jewish or holding particular views about Israel. Such conduct, of course, would be subject to sanctions.
When I delved further into this, though, I came to the conclusion that the law school does not already forbid such "exclu[sions] of speakers on account of … holding particular views about Israel"; I've confirmed with Dean Chemerinsky that categorically excluding speakers based on their views on Israel—even when the event has nothing to do with Israel—wouldn't be punished under any current rules.
But could there be such a policy? Could a public university bar student groups from discriminating against speakers based on viewpoint in this way?
[1.] To begin with, private groups have the First Amendment right to choose whom to invite as speakers based on the speakers' views, even views unrelated to the particular event. I think Boy Scouts v. Dale makes that clear: The Boy Scouts had a First Amendment right to exclude Dale from being an Assistant Scoutmaster because
Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior….
[W]e have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior." As the presence of [an Irish-American Gay, Lesbian, and Bisexual Group] in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy [Scouts'] choice not to propound a point of view contrary to its beliefs.
To be sure, Assistant Scoutmasters speak on behalf of the group, and invited speakers need not. But they are certainly part of the "message" that the group seeks to "send" with its events. Indeed, speakers are often invited precisely because their presence (as well as what they say) will send a particular message.
Moreover, groups are necessarily highly selective in many ways in the speakers they invite, and seek to create a coherent event with a particular message. Whatever rules there might be for shopping malls where visitors speak for themselves and not as part of the mall's message, or for universities where recruiters speak for themselves and not as part of the university's message, the First Amendment protects groups' ability to select those particular speakers they wish to invite to give the group's events the message that the groups seek to present.
[2.] This having been said, a public university may indeed impose reasonable and viewpoint-neutral restrictions on what groups do on university property or with university money, see Christian Legal Society v. Martinez. For instance, they can mandate that student groups can get such publicly provided benefits only if they have the "all-comers" policy that Dean Chemerinsky noted, even though private expressive groups on private property may pick and choose their members. They can mandate that student groups be democratically structured, or that their leadership be limited to students, even though private expressive groups on private property may of course organize themselves otherwise. And the list can go on.
A university therefore might be able to design a viewpoint-neutral rule that a student group may not discriminate based on viewpoint in its choice of speakers—but that would be a very strange rule indeed, since often you'd want to invite speakers precisely because of the views they present. (Indeed, even if you're trying to organize a debate, you'd be inviting speakers based on their conflicting viewpoints, and excluding speakers who viewpoints you see as too marginal, or for that matter too centrist.) Such a rule certainly wouldn't be practically viable, and indeed might be so counterproductive as to be not "reasonable" for constitutional purposes.
A university might instead have a rule that bars student groups from discriminating based on a speaker's viewpoint that's unrelated to the topic the speaker is discussing. That might be more reasonable, but it might be harder to implement in a viewpoint-neutral way, since what counts as "unrelated" may often be a contested matter of degree, and would often turn on one's perception of the speaker's viewpoint.
But beyond that, would a university really want to have such a rule? It seems to me that lots of groups could reasonably not want to invite speakers whose views they find sufficiently repugnant—Nazis, or Communists, or other supporters of violent revolution or riots and the like—even if they're speaking on topics far afield from those views.
More broadly, say a pro-gay-rights group prefers not to invite opponents of gay rights (regardless of what topics they're discussing), or a traditionalist Catholic group prefers not to invite supporters of abortion rights or same-sex marriage, or for that matter a Jewish group prefers not to invite people who endorse the Hamas Covenant's statement that "The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews)." That seems a plausible choice for those groups to make in shaping what is after all an event that they are organizing, and that they hope will appeal to their audience. And while such a choice may in some situations be condemned as closed-minded, I doubt that a school would want to foreclose such choices.
[3.] What's going on in the opposition to the "no pro-Israel speakers" policy, I think, is the judgment that pro-Israel viewpoints are different from the other viewpoints I describe: They aren't as repugnant or extreme as Nazi or Communist viewpoints, and they would be chosen by groups whose ostensible purposes are quite far removed from the Israeli-Palestinian dispute. And I share that judgment.
But I don't think that a university can implement that judgment into a constitutionally permissible rule, precisely because it's a fundamentally viewpoint-based judgment: some viewpoints are so bad (or so inconsistent with a group's purpose) that it's fine for groups to exclude speakers who hold them, but others aren't.
We legitimately make such viewpoint-based judgments in various situations in our daily lives. (I hope we wouldn't cut out friends from our lives, for instance, just because we disagree with them on various subjects, but we well might if they start talking about how we should kill Jews or capitalists or gays or police officers.) Yet a public university can't implement such a viewpoint-based rule. It would either have to ban all viewpoint-based exclusion of speakers (regardless of the speakers' viewpoint), or allow groups to engage in such exclusions.
[4.] So what's the remedy? I think we're seeing it, and it's publicity. It's important for Jewish students, and for Jews more broadly, to understand the breadth and shape of opposition to Israel among various other groups—including groups that many of those Jews might otherwise see as potential political allies. That a group is willing to exclude a vast range of American Jews as speakers, including many who are on the Left (even far Left) and may well agree with the great bulk of the group's agenda, is an important data point that people should know about the group. (Here, those groups are Berkeley Law Muslim Students Association, Middle Eastern and North African Law Students Association, Womxn of Color Collective, Asian Pacific American Law Student Association, Queer Caucus, Community Defense Project, Women of Berkeley Law, and Law Students of African Descent.) Of course, those groups don't necessarily speak for all students whose identities they invoke, or even for all their members. But they do speak, presumably, for their leaders, and if the project gains steam, there'll be other groups whose leaders' positions will thus become clear.
Indeed, my sense is that American Jewish support for Israel stems in part from the view that Jews need a place where they will always be welcome, even when other places turn against them. "Home is the place where, when you have to go there, they have to take you in." Apparently even many ostensible allies and supporters of "diversity, equity, and inclusion" would be willing to boycott what is likely the great majority of Jewish speakers. ("Caring about Israel is 'essential' to what being Jewish means to 45% of U.S. Jewish adults, and an additional 37% say it is 'important, but not essential'"; that seems likely to be highly correlated with "support of Zionism" or support of Israel.) That may well lead move some American Jews more towards the view that alliances with various non-Jewish groups can be dicey and evanescent, and that it's more important to support fellow Jews (and a Jewish country) than to rely on such alliances.
Sometimes "the fitting remedy for evil counsels is good ones" (to quote a famous Jew) because good ideas are the best way (however imperfect it may be) to rebut bad ideas. But sometimes the good counsel can consist of exposing the evil counsel, and giving us a better sense of what the evil counsel's advocates really think, so we can more effectively decide what is needed to protect ourselves and those we care about.
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” the apartheid state of Israel, and the occupation of Palestine.”
Neither of which is true
Even the Israeli courts and the Israeli government agree that (parts of) the West Bank are occupied. That’s how they justify not letting the people who live there vote in Israeli elections.
You can’t reason with bigotry, superstition, or belligerent ignorance — all of which are involved here.
That doesn’t explain why, while a sedition trial is in full bloom and classified documents are found strewn about a beach house, the Official Legal Blog Of The Clingerverse is laser-focused on extracurricular activities at strong, mainstream, liberal-libertarian law schools.
Carry on, clingers. So far as your stale, ugly thinking could carry anyone in modern, improving-against-your-wishes America.
Get it? If you support the continued existence of the State of Israel — you’re a bigot. But “Jew-free zones” are a sure sign of a strong, mainstream, liberal-libertarian law school.
I support consideration of admitting Israel as a state of the United States of America.
Which would solve a number of problems, although not in a manner attractive to clingers.
Would they want to share a country with the likes of you?
You figure they are low enough in character that they would prefer to continue just freeloading off me? I think they likely are better than that.
And if not, they should get the chance — and soon — to operate without hiding behind the political, economic, and military skirts provided by people they wouldn’t want to live among.
You’re not a bigot, you simply describe Jews as parasites.
I describe Israel as a welfare case (from the American perspective) that hides behind our political, economic, and military skirts.
And how would you describe Western Europe?
Western Europe’s annual US aid bill, totaled, is less than what we’ve given Russia in 2022. Israel is $3.3 billion. Only Ukraine is getting more this year, for obvious reasons, and that’s Eastern Europe. We give many times more to… Canada.
So how would I describe Western Europe, based on the tax monies we send them? “Self-sufficient.”
Just to be clear, we’re including U. S. military spending which goes to troops and nukes protecting Western Europe?
[post deleted]
Israel would add another 500B to US GDP; Israel’s GDP is not terribly different than NJ. Pretty good tech. Air conditioned shuls. 🙂
At the same time , Israel remains vastly more free than Palestine and it remains non aparthied especially in comparison to Palestine.
Because “occupied” isn’t annexed and the Palestinians in the occupied territories aren’t Israeli citizens.
Israel has occupied Palestine just like the USA occupied Japan in 1946 or Afghanistan in 2004. The Japanese couldn’t vote in US elections in 1946, nor the Afghanistanis in US elections in 2006.
Israel has occupied Palestine for the same reason the US occupied Japan in 1946 or Afghanistan in 2004. Because the leaders of those countries (Japan, Afghanistan, or Palestine) made poor decisions which involved bombing Israel or the US (or protecting terrorists who bombed Israel or the US), and the country (The US or Israel) responded in such a way to stop the aggression.
There is no Apartheid. The Arab-Israeli citizens who live in Israel have every right to vote in Israel (and they do…in large numbers), as do the Japanese American Citizens or Afghanistani-American citizens.
Demanding that citizens of Palestine be given the “right” to vote in Israeli elections is pretty absurd. It would imply that Palestine is actually part of Israel and that there was no independent Palestinian state.
The US did not indefinitely continue those occupations and did not establish settlements of citizens within the occupied territories who could vote.
1. Gaza isn’t occupied.
2. If you’re arguing about settlements…
Here’s a map of Okinawa.
https://libguides.gwu.edu/okinawa/militarybases/maps
The West Bank is occupied. US military bases are approved by the Japanese government.
Japan was occupied. The Japanese government only “approved” the original military bases at nuclear gun point. The Israeli settlements are administered under Israeli military law.
Japan doesn’t lob missiles at the US on an annual basis.
The occupation of Japan ended in 1952 and Okinawa was no longer in US control in 1972. The Japanese government can kick out the US military if it so desires.
Are you arguing West Bank settlements are justified by rockets from Gaza?
The US pays rent to the owners of the land in Okinawa. The US also reduced the amount of land it uses and that land is returned to its owners and turned to other, more profitable, uses. Host nations are able to demand the US remove bases and when that happens, the US removes its bases. It’s not occupation any more than renting an apartment is occupation.
Jewish settlements in parts of occupied Palestine (the parts that aren’t/weren’t Israel) are not being rented and there’s no plan to return the land to its owners. The settlements are an attempt to expand the boundaries of Israel by seizing Palestinian land.
Okinawa is a nice case example. It only reverted to Japanese control in 1972…more than 25 years after the Japanese stopped bombing and attacking the US. And no rent was paid before then.
Perhaps if the Palestinians would stop attacking Israel, eventually the land would stop being occupied.
1) GAza is not occupied
2) Gaza is the apartheid state
Could a Federal Judge Exclude Interns Based on Which University They Attended?
Prof. Volokh, FTFY.
Volokh has recently blogged about Circuit Judge Ho excluding YLS grade from clerking for him.
https://reason.com/volokh/2022/10/01/giving-yale-law-school-the-heave-ho/
That’s a blog post by Josh Blackman, not EV.
This page is titled Volokh Conspiracy. I shortened that to Volokh.
That level of scholarship makes you an ideal candidate to become Prof. Blackman’s assistant on Supreme Court history.
I just dropped in to say that this was infinitely better than your co-conspirator’s terrible two posts on the subject, and this is the type of post that made me start reading VC so many years ago (and is now more notable for its absence).
The only thing I would add is that this mainstreaming of Israel as a salient issue for young people does not bode well- unlike older generations that were brought up in a different time, with stories of plane high jackings and unfettered aggression against a plucky young democracy were normalized… today the stories are far different.
We may already have reached the point at which American support for Israel — the political, economic, and military skirts behind which Israel’s right-wing belligerents operate — will be determined by whether conservatives and Republicans win the American culture war.
This seems an intensely stupid wager for those who support Israel to have made but . . . it’s their funeral!
Stomping some enlightenment into the Jews, eh?
Merely acknowledging the predictable, just consequences of choosing the side of losers and bigots.
OK, Brownshirt.
Actions have consequences. Israel has fucked up royally, at least in the eyes of the culture war’s victors. Perhaps Israel can make amends. If not, the liberal-libertarian mainstream should impose consequences.
No free swings, clingers. Losing a culture war has consequences.
Of course Israel is royally pucked up in your eyes.
It just the freest and least bigoted country and the most productive country in the middle east.
That is exactly what the culture warriors such as yourself detest.
All Trump fans will be replaced by their betters. Why should Israel be any different? Play stupid games, win stupid prizes.
I agree that Eugene’s post is illuminating whereas David’s was naked advocacy.
I was wondering if Eugene had comments on David’s argument that the university had a viewpoint neutral rational for not allowing student groups to exclude pro-Israel speakers: such an exclusion discriminates against Jews. David supports this claim by noting 1) support of Israel is closely linked to being Jewish in the same way that same-sex marriage is closely related to being gay and 2) refusing to make a cake for a same-sex marriage has been consistently judged discrimination against gays by courts and administrative agencies. David further said the school could forbid student groups from excluding speakers who support same-sex marriage because such an exclusion discriminates against gays.
I countered that not making a cake for a same-sex marriage discriminates against gays because entering into a same-sex marriage is conduct closely related to being gay. But, speaking out in favor of same-sex marriage is not closely related to being gay. And therefore, neither is speaking out in favor of Israel closely related to being Jewish. Instead, both are expressions of viewpoints and a rule which did not allow student groups to ban speakers with those viewpoints would not be viewpoint neutral.
“That may well lead move some American Jews more towards the view that alliances with various non-Jewish groups can be dicey and evanescent, and that it’s more important to support fellow Jews (and a Jewish country) than to rely on such alliances.”
It would also be good if it moved some to re-appraise the support, and reasons for the support, other non-Jews are glad to give them. They still won’t always like all that they find, but there’s a lot of good will spurned out of avoidable misunderstanding.
Fortunately American Jews can always rely on the GOP to stand up for them. O, wait. https://twitter.com/JudiciaryGOP/status/1578174670854975491
I appreciate these boundaries quickly get gray, but in Dale they at least claimed to be excluding him because of his “conduct,” not because they believed he held certain views. Here, the pledge specifically requires speakers to be excluded because of their “views.” So the University’s position is that they cannot prevent groups from excluding people because of their views, because that would be excluding people because of their views?
Excluding speakers who have in some way taken action against Palestinians, or who have advocated for certain actions to be taken against Palestinians, would be one thing. However, simply holding views in support of Israel isn’t an “action,” it isn’t “conduct.”
Anyway, here’s my question for BDS and its supporters – you’re clear about what you’re against, but very vague regarding what you’re for. What sort of place is this Palestine you envision? Is it a homeland for people of Palestinian Arab ethnicity organized under Islamic principles, as per the PA, or a purely Islamic state, per Hamas, or something else? That’s a sincere question, I’d truly like to learn more but can’t find anything in any BDS-produced publication.
“but can’t find anything in any BDS-produced publication.”
It is highly unlikely that you will, because they essence of their position is that Palestine should be a place with no Jews save the few whose great grandparents lived there prior to 1900 (pick a date ≥100 years ago.)
FWIW – there is a tremendous amount of history is ignored on both sides of the israel / palestine debate.
I will skip the period prior to the 1800’s.
beginning circa the late 1800’s when the zionist movement started up anew, most of the jews migrating to Israel were purchasing the land for above market prices. for the most part, the region was lightly inhabited. As the jewish immigrants brought prosperity to the region, jordians, started migrating into the region to take advantage of the growing prosperity.
A A large migration of jewish settlers moved to the region following WW2
Another large migration took place after the 1948 war as arab countries began evicting their jewish citizens along with confiscating their possession.
the only major offense the Israelis committed against the palestinians was not letting some return after those participated in the 1948 war. For that, the palestinians should place the blame on their arab neighbors who started the war!
Another aspect was Egypt was one of the major forces keeping the palestinians in the gaza strip – Egypt (nor the other arab countries) wanted the palestinians.
all told, both sides continue to present a very myopic view of the issue.
@Don Nico – I believe that’s correct, and I think it’s reasonable to assume it’s correct since it aligns with the “official” Palestinian position, however the backers of BDS go to great lengths to avoid being explicit about it. I wonder why…?
They cannot exclude students because of their views. However, the student groups can exclude the speakers they invite to campus based on the speaker’s views. The status of a fellow Berkeley student to the group is different than that of prospective speakers.
Shawn that’s an important distinction you’re making and I agree, but I see a difference between a group excluding a speaker because they don’t like his views versus having an explicit policy of excluding a certain view, regardless of the speaker. Somewhat analogous to the idea that no one can force you to rent your apartment to anyone you don’t want to, but you can’t post a sign saying “I won’t rent this apartment to Black people.”
I reiterate what I wrote earlier regarding law schools. The only addition I would add is the desire to see states defund colleges and universities. What I wrote previously:
Screw law schools. Let’s open things up for a little, or a lot, more competition:
1) only a small number of states allow a person to take the bar who has read the law for a predetermined period of time. Expand that in every state.
2) allow graduates of accredited law schools from other nations to take bar exams. Expand the number of states that allow foreign educated lawyers to take the bar and remove the ABA from the process of vetting their education.
3) reduce state restrictions on what tasks non-lawyers can perform. This is not a direct means of competing with law schools but it may allow people to choose the legal field while not having to attend law school. Consider the medical analogy of the physician assistant and the doctor. The PA works under the guidance and supervision of the MD. Expand upon that concept in the legal field
4) allow more distance learning: again, the ABA has its grip on things by not accrediting schools that offer a full online JD
A response from Noscitur a sociis: “More low quality lawyers sounds like the absolute last thing that our society needs right now.”
My reply: “Yeah, because John Marshall, Abe Lincoln and Patrick Henry are such poor examples of lawyers who did not attend law school.
And I am certain if you studied at Oxford, your skills as a lawyer must be “low quality”.
And heaven forbid anyone do some of the more mundane tasks of a lawyer while under their supervision!! The entire legal system might crumble without lawyers doing everything!”
reply from tkamenick:
state certification =/= quality
not being certified =/= low quality
I think it more likely that mainstream America will withdraw accreditation from nonsense-teaching, bigoted schools than that better Americans will withdraw funding from the public schools that have made America great.
Carry on, clingers. Until replacement.
“public schools that have made America great.” Are you suggesting the country was NOT great before the advent of publicly funded education? On what criteria do you base that?
Who exactly is clinging here? You who is arguing the maintenance of the status quo of continued government funding of education? Or me, who is arguing for increased competition, allowing more people into the field and reducing the costs for people to obtain a law degree as a result of that new competition and as a result of the lack of government subsidies which by most research is what is driving up the cost of college tuition?
Boiled down to its essence, and granted in this limited context the right to espouse horrible views, we see a couple issues –
-Boycotting countries (and their supporters) whose sins aren’t as bad as the non-boycotted countries (and their supporters).
-Coyness (to say the least) about whether you want the boycotted country destroyed altogether.
Aside from practicality, I don’t think that you could even have a facially valid rule prohibiting groups from discriminating against speakers based on viewpoint. It would still be a content based restriction on speech, which would be presumptively invalid and subject to strict scrutiny. At the point where you are setting restrictions based on speech, we are no longer purely in CLS v. Martinez right to free association land.
I thought CLS established that recognition of student groups is analyzed using the limited public forum doctrine which allows content based restrictions.
David Bernstein’s position is that it is hard to distinguish the “must agree with us about Palestine” policy from one that is de facto discriminatory against Jews. If you seem to be Jewish your past statements may get closer examination, or you may be asked to state your support for the abolition of Israel.
Our law has conflicting standards for when improper motive invalidates some facially legal action. The cop can pull you over for a burned out license plate bulb but really because you have the wrong skin color. Whren says pretext stops are legal. Your employer can’t fire you for breaking a rule but really for being Jewish. The McDonnell Douglas process tells the fact finder to look past a pretext. Where does campus free speech fall?
I’m struggling with the argument “because the 1st Amendment does not allow us to exclude any viewpoints, therefore we cannot prevent University organizations from excluding viewpoints.”
If a person has engaged in certain conduct, and inviting that person to speak (even on any topic) might be perceived as an endorsement of that conduct, then I certainly agree that no group should be forced to invite that person to speak. Further, I would think a policy stating that a group does not wish to endorse certain types of content, and won’t invite speakers (in general) who might give a contrary impression, would also be protected speech. However, this policy does not assert a content-based right on the part of the group (i.e., the desire to avoid an endorsement) but simply prohibits a particular viewpoint, which seems contrary to stated University policy.